What is succession?
Succession is the right and transmission of the rights and obligations of the deceased to their heirs.
The Kenya law of succession prescribes the rules which determine what ought to happen to a person’s estate after their or her death. It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living.
The rules of succession identify the beneficiaries entitled to succeed to the deceased’s estate and the extent of the benefits they are to receive. The Kenya law of succession determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased’s estate.
What is the importance of succession?
The main function of succession is to provide mechanisms for the transmission of property from the deceased to those who survive them. It involves:
- identifying the legal/rightful claimants of the deceased’s property.
- The procedures of which is to be taken by the claimants to enable them acquire the property of the deceased.
- Tools for dispute resolution are provided to resolve any encounters between persons who claim to be rightful claimants.
Who has the right to inherit a deceased person’s property?
The Law of Succession Act Cap 160 provides for persons that can inherit the property of a deceased person under section 29 as dependants which include:
- the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
- such of the deceased’s parents, step-parents, grand-parents, grandchildren, stepchildren, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
Is a woman allowed to inherit property?
Yes. Both men and women have equal rights to inherit property. Reference to children does not distinguish between sons and daughters, neither is there distinction between married and unmarried daughters
Can parents inherit the property of their deceased child?
Yes. Parents can inherit their deceased children’s property if:
- The child included them in a will as beneficiaries and/or dependants;
- Where there is no will, if the parents prove that they were dependants of their child prior to his/her death;
- Where the deceased has no surviving wife or children and no will, then they (parents) will be given the first priority
What is intestate succession?
Intestate succession is where a person dies without having made a will or the will is invalidated.
How is intestate succession done?
There are various things that are considered when one dies intestate. Below is what is considered.
- If you’re married and have children
Your surviving spouse shall be entitled to personal and household effects absolutely. Further, to a life interest in the remaining property of the deceased person. The spouse will also have an interest in property which will terminate upon his/ her death. If the surviving spouse is a widow, that interest shall come to an end if she marries another person. The children will get the estate upon the termination of the life interest of the surviving spouse.
- If you’re married with no children
Your surviving spouse will receive all personal and household effects absolutely up to the first Kshs.10, 000/- or 20% of the residue estate whichever is greater. The spouse will also have an interest in property which will end if she gets married to another person.
- If you’re not married and have children
In such a case, your children will receive the proceeds of your entire estate at age 18.
- If you’re not married have no children
Here, your entire estate will go to the following family members, in this order:
- Father, if dead;
- Mother, if dead;
- Brothers and sisters and children of deceased brothers and sisters in equal shares, if dead;
- Step-brothers and sisters, if deceased their children in equal shares, if dead;
- Relatives who are closely related to you.
- If you have no living relatives and die intestate, your estate will go to the state.
What is the importance of a will?
A will enables you to have control over your property even after you are deceased. For instance, how your estate should be distributed. If you die without a will, your estate will be distributed to your relatives according to a certain legal formula. This can be very different from what you wanted or intended to happen. It can also cause complications, delays and extra costs for those you leave behind. If you die without having written a will and you don’t have any relatives, your estate will go to the government.
How can I write a will? Do I need a lawyer for me to write a will?
Any person can write a will. One does not need to have a lawyer to write it, but the lawyer can be present for purposes of witnessing it However, to write a valid will, you must be in a good state of mind to understand the nature of your actions.
- A will can be oral or written.
- For an oral will to be valid, it has to be made before two or more witnesses of
- sound mind and full age);
- A written will is valid only if it is signed and witnessed by two or more competent witnesses.
How do I start the succession process?
Starting the succession process depends on whether succession is testate & intestate.
In testate succession, you need to file the following documents
- Form P.A 78 (petition)
- Form P & A 3 (affidavit)
- the original will plus 2 photocopies of the will &
- original death certificate.
In intestate succession, there are various things that should be considered. This
includes whether there are beneficiaries and the value of the deceased’s property.
For property less than Kshs. 300,000/- file the matter in the magistrate court and
if more than Kshs. 300,000/- file the matter in the high court. You need to file the
following documents;
- A search on the property;
- A letter from the chief stating the surviving beneficiaries;
- The death certificate (original)
After obtaining the above stated documents, the applicant is to file four forms in the
court:
- One, to identify proposed administrators and at least three witnesses;
- Two, to list of the deceased person’s property (shares in a company, money held in account, moveable property and immovable property (land), liability);
- Three, list of beneficiaries and dependants;
- P & A 80 – The main petition that is accompanied by the above stated forms. It contains the prayers, if one wants to be an executor or administrator.
After the filling, the petition will need to be gazetted which one is required to pay for it
Thereafter, you need to wait until it is printed in the gazette within three (3) months form the date of filling the matter.
Once printed, you will need to have a copy of the gazette notice. Therefore, you can print it or buy it. You are required to attach the gazette notice to an application for a hearing date of the petition. This will be a hearing for letters of administration.
After you are granted the letters of administration, you will wait for six months then file an application for confirmation of grant. Here, you can also file a schedule of the subdivision among the beneficiaries and/or dependants.
After that, you get a confirmation of letters of administration from the court. The confirmation is a monitoring mechanism of the court that confirms that the personal representatives have been administering the estate and empowers the personal representative to distribute any capital assets, including land.
For land, you take the certificate of confirmation to the land registry and file an application for transmission of the land. Details that will be required in the transmission form include:
- The details of the parcel of land;
- How much you are transferring and to who;
- Photos (three (3) passport size) of the administrator and beneficiary;
- One form for each beneficiary.
PROCESS OF APPLYING FOR GRANT FOR TESTATE AND INTESTATE IN KENYA
Applicable Law;
- The Law of Succession Act (Chapter 160, Laws of Kenya)
- Probate and Administration Rules (cap 160 Sub Leg)
Probate and all things Succession is divided into:
- Non-contentious (probate in common form) and
- Contentious probate (probate in solemn form).
The above types of Succession matters are further divided into;
- Testate: This is when one makes a valid and enforceable will which ensures that upon the death of that person, their property passes to a person/s of their choice.
- Intestate: When a person dies without making a will or the will is invalidated.
Related Constitutional Provisions.
The Constitution of Kenya envisages under Article 27 and 40 the equal protection of property rights for men and women. The Constitution expressly provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Procedure For Applying for Grant Of Representation.
The preference of the applicants ought to be as per the order of priority stipulated in section 66 of the Law of Succession as follows;
- Surviving spouse or spouses, with or without association of other beneficiaries;
- Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
- The Public Trustee; and
- Creditors.
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.
Once one has confirmed that they meet the requisite threshold, you can then proceed to make the application under section 51 of the Kenyan Law of Succession Act and Rule 7 to 14 of the Probate and Administration Rules to make the application. Every application shall include information as to:
- The full names of the deceased;
- The date and place of his death
- His last known place of residence;
- The relationship (if any) of the applicant to the deceased;
- Whether or not the deceased left a valid will;
- The present addresses of any executors appointed by any such valid will;
- In cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
- A full inventory of all the assets and liabilities of the deceased; and
- Such other matters as may be prescribed.
Where it is alleged in an application that the deceased left a valid will;
- If it was written– the original will shall be annexed to the application, or if it is alleged to have been lost, or destroyed otherwise than by way of revocation, or if for any other reason the original cannot be produced, then either
- An authenticated copy thereof shall be so annexed; or
- The names and addresses of all persons alleged to be able to prove its contents shall be stated in the application.
- If it was oral– the names and addresses of all alleged witnesses shall be stated in the application.
NB: it is worth noting that as per section 56 of the Act, an application under section 51 will not be granted to a minor, a person of unsound mind or a person declared bankrupt. Further, the application ought to be made by not more than four persons who qualify as prescribed above.
The following forms are then prepared to be lodged at the High Court Registry after payment of the requisite fees;
- Form P & A 80 (Petition in form of Summons)
- Form P & A 5 (Affidavit in Support)
- Form P & A 12 (Affidavit of Means)
- Form P & A 11 (Affidavit of justification of proposed suits)
- Form P & A 57 (Guarantee of personal sureties)
- Death certificate
- Form P & A 38 (Consent Form)
- Letter from the chief or any authority confirming the Beneficiaries of the deceased estate.
- Evidence of ownership of assets (copies of title documents).
- Consent from adult beneficiaries not applying in cases of intestate succession.
- Original Will in matters of testate succession.
If the said documents have been lodged, the same will be advertised in the Kenya gazette as a succession cause for a thirty (30) days period to allow any person who feels aggrieved for any reason by the Petition ample time to lodge any objections.
An individual who feels entitled to the estate and is not included in the Petition, can file the said objection through another petition to stay the advertisement.
If there is no objection filed after the thirty (30) day notice period provided in the act, the person making the application receives letters of administration. The said Letters serve as an authority for the administration of deceased’s estate. However, the holder (s) of the letters of administration cannot distribute the estate of the deceased but is to collect and preserve the assets of the deceased.
After the lapse of six months from the date of issue of the letters of administration, the holder of the said Letters of Administration can petition the court for confirmation of grant of letters of administration.
The said application to confirm under Section 71(3) of the Law of Succession Act and Rule 40 of the Probate and Administration Rules. The court is moved under Summons, with an accompanying Affidavit in support. Apart from those, you are also to attach a schedule of assets that provides the description of the property and share of the heir.
Authored by Henry Njuguna Adv, MCIArb
We at NKN will gladly help through this process. Reach out on 0722382783.